Annual Ethics Update 2018

Presented by:
Margaret H. Nelson, Esquire
Peter F. Imse, Esquire
Kevin M. O’Shea, Esquire
Annual Ethics Update
Ju ne 2 2, 2 0 18
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I. Technology and Ethics
A. Confidentiality Obligations for Lawyer Blogging and Other Public Commentary: ABA
Formal Ethics Opinion 480 (2018)
B. Destruction of Data at the Close of a Case: What Obligations For Attorneys?
C. Ethical Obligations Regarding Confidential Client Information at the U.S. Border:
Overview of CBP Policy Directive No. 3340-049A
II. New Hampshire: A Year in Review
A. New Hampshire Ethics Decisions
B. Proposed Model Rule 8.4(g) – New Hampshire’s Proposals
II. Other Topics in Legal Ethics
A. A Lawyer’s Duty to Inform a Current of Former Client of the Lawyer’s Material Error:
ABA Formal Ethics Opinion 481 (2018).
Presentation Overview
J u n e 2 2 , 2 0 1 8
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Presented by:
Confidentiality Obligations for Lawyer
Blogging and Other Public Commentary
A BA F ormal Et hics O pinion 4 8 0 ( 2 018)
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• NH Rules of Professional Conduct 1.1 (Competence)
• “(a) A lawyer shall provide competent representation to a client.
(b) Legal competence requires at a minimum:
…
(2) performance of the techniques of practice with skill;
…
(4) proper preparation;
The Rules
5

• NH Rules of Professional Conduct 1.1 (Competence)
•
(c) In the performance of client service, a lawyer shall at
a minimum:
…
(4) undertake actions on the client's behalf in a
timely and effective manner”
• “Techniques” include the way the client’s file is maintained, stored
and organized.
The Rules
6

• ABA Model Rule 1.1, Comment 8
• “To maintain the requisite knowledge and skill, a lawyer should keep
abreast of changes in the law and its practice, including the benefits
and risks associated with relevant technology...”
• New Hampshire Ethics Committee Comment to Rule 1.1
• “Realistically, a lawyer should keep reasonably abreast of readily
determinable benefits and risks associated with applications of
technology used by the lawyer, and benefits and risks of technology
lawyers similarly situated are using.”
The Rules
7

ABA Formal Ethics Opinion 480 (2018)
• Lawyers who blog or engage in other public commentary may not reveal
information relating to a representation, including information
contained in a public record, unless authorized by a provision of the
Model Rules.
• https://www.americanbar.org/content/dam/aba/administrative/profess
ional_responsibility/aba_formal_opinion_480.authcheckdam.pdf
Public Commentary:
8

Public Commentary Includes:
• Blogs;
• Listserves;
• Online articles;
• Website postings;
• Microblogs (i.e.,Twitter);
• Legal education programs;
• Articles and chapters in
traditional print media such as
magazines, treatises;
• Law firm white papers, and law
reviews; and
• Public remarks in online
informational videos such as
webinars and podcasts.
9

New Hampshire Rule 1.6. (Confidentiality of Information)
• (a) A lawyer shall not reveal information relating to the representation
of a client unless:
• the client gives informed consent,
• the disclosure is impliedly authorized in order to carry out the
representation, or
• the disclosure is permitted by paragraph (b).
The Rules
10

• (b) A lawyer may reveal such information to the extent the lawyer reasonably
believes necessary:
• (1) to prevent reasonably certain death or substantial bodily harm or to prevent
the client from committing a criminal act that the lawyer believes is likely to
result in substantial injury to the financial interest or property of another; or
• (2) to secure legal advice about the lawyer's compliance with these Rules; or
The Rules
11

• (b) A lawyer may reveal such information to the extent the lawyer
reasonably believes necessary:
• (3) to establish a claim or defense on behalf of the lawyer in a controversy between the
lawyer and the client, to establish a defense to a criminal charge or civil claim against the
lawyer based upon conduct in which the client was involved, or to respond to allegations
in any proceeding concerning the lawyer's representation of the client; or
• (4) to comply with other law or a court order; or
• (5) to detect and resolve conflicts of interest arising from the lawyer's change of
employment or from changes in the composition or ownership of a firm, but only if the
revealed information would not compromise the attorney-client privilege or otherwise
prejudice the client.
The Rules:
12

• (c) A lawyer shall make reasonable efforts to prevent the inadvertent or
unauthorized disclosure of, or unauthorized access to, information
relating to the representation of a client
The Rules:
13

• This confidentiality rule applies not only to matters communicated in
confidence by the client.
• But also to all information relating to the representation, whatever its
source.
• In other words, the scope of protection afforded by Rule 1.6 is far
broader than attorney-client privileged information.
Public Commentary:
14

• Significantly, information about a client’s representation contained in a
court’s order, for example,
• although contained in a public document or record,
• is not exempt from the lawyer’s duty of confidentiality under Model
Rule 1.6.
Public Commentary:
15

• The duty of confidentiality extends generally to information related to a
representation
• whatever its source and
• without regard to the fact that others may be aware of or have
access to such knowledge.
Public Commentary:
16

• A violation of Rule 1.6(a) is not avoided by describing public
commentary as a “hypothetical”
• if there is a reasonable likelihood that a third party may ascertain
the identity or situation of the client
• from the facts set forth in the hypothetical.
• Hence, if a lawyer uses a hypothetical when offering public commentary,
• the hypothetical should be constructed
• so that there is no such likelihood.
Public Commentary:
17

• Rule 1.6 does not provide an exception for information that is “generally
known” or contained in a “public record.”
• Accordingly, if a lawyer wants to publicly reveal client information, the
lawyer must comply with Rule 1.6(a).
Public Commentary:
18

• Beware the Footnotes
• Footnote 10
• But see In re Sellers, 669 So. 2d 1204 (La. 1996) (lawyer violated
Rule 4.1 by failing to disclose existence of collateral mortgage
to third party; because “mortgage was filed in the public
record, disclosure of its existence could not be a confidential
communication, and was not prohibited by Rule 1.6”).
Public Commentary:
19

• Beware the Footnotes.
• Footnote 20
• One jurisdiction has held that a lawyer is not prohibited from writing a
blog that includes information relating to a representation that was
disclosed in an open public judicial proceeding after the public
proceeding had concluded.
• In Hunter v. Virginia State Bar, 744 S.E.2d 611 (Va. 2013) the Supreme
Court of Virginia held that the application of Virginia Rule of
Professional Conduct 1.6(a) to Hunter’s blog posts was an
unconstitutional infringement of Hunter’s free speech rights.
20

• Beware the Footnotes.
• Footnote 20
• The Committee regards Hunter as limited to its facts. Virginia’s Rule 1.6 is
different than the ABA Model Rule. The Virginia Supreme Court rejected the
Virginia State Bar’s position on the interpretation and importance of Rule 1.6
because there was “no evidence advanced to support it.”
• But see People vs. Isaac which acknowledges Hunter but finds a violation of
Colorado Rule 1.6. We note, further, that the holding in Hunter has been
criticized. See Jan L. Jacobowitz & Kelly Rains Jesson, Fidelity Diluted: Client
Confidentiality Give Way to the First Amendment & Social Media in Virginia
State Bar ex rel. Third District Committee v. Horace Frazier Hunter, 36
CAMPBELL L. REV. 75, 98-106 (2013).
21

Guidance Offered on Posting to Listservs,
• Ethics Corner Article, New Hampshire Bar News (September 20, 2013)
• Posting a “hypothetical” question on a Listserv might seem
innocuous and, at first blush, appear not to contain confidential
client information protected under RPC 1.6.
• However, the posting lawyer neither knows the identity of all
prospective readers, nor what information a prospective reader
already may have in his or her possession concerning the lawyer’s
client or the case at issue.
• Thus, even a Listserv posting that is loosely based on a client matter
potentially may disclose, albeit unintentionally, client confidential
information in violation of RPC 1.6.
Public Commentary:
22

Presented by:
Destruction of Data
At the Close of a Case
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• What obligations does an attorney have when a settlement agreement
or court order calls for the destruction of data with regard to electronic
back-up media/systems?
Overview
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Rule 1.15 Safekeeping Property
• “(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession
in connection with a representation separate from the lawyer’s own property, in
accordance with the provisions of the new Hampshire Supreme Court Rules…. All client
and third party property shall be identified as such and appropriately safeguarded.
• (e) … Except as stated in this rule or otherwise permitted by law or by agreement with the
client, a lawyer shall promptly deliver to the client or third person any funds or other
property that the client or third person is entitled to receive and upon request by the
client or third person, shall promptly render a full accounting regarding such property.”
• Client property includes the client file. Avrill v. Cox, 145 NH 328 (2000).
The Rules
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Rule 1.16 – Terminating Representation
• “(d) As a condition to termination of representation, a lawyer shall take
steps to the extent reasonably practicable to protect a client's interests,
such as giving reasonable notice to the client, allowing time for
employment of other counsel, surrendering papers and property to
which the client is entitled and refunding any advance payment of fee
or expense that has not been earned or incurred.”
• “Property to which the client is entitled” includes the client file.
The Rules
26

• At the close of some cases, data complied over the course of the matter
may have to be destroyed:
• Fairly straightforward with physical documents,
• Electronic data can pose a greater challenge.
Background
27

• Potential Obstacles:
• Documents can be saved in more than one location,
• Multiple copies of documents can be generated each time a document
is saved/shared internally,
• Information is saved on back-up media/systems,
• Information may be saved on the cloud with a back up system that is
completely beyond the control of Sulloway.
• As such, difficult to destroy all copies given the nature of document
retention systems.
Electronic Data Destruction Issues:
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• Aside from an agreement or a protective order,
• Destroying records in accordance with an official records retention policy,
• is preferable to selective or arbitrary destruction
• BUT, deviation from official records retention policy may be necessary
when destruction is required by settlement agreement or court order,
Record Retention Policy
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• ABA and NHBA place a great deal of importance on having and regularly
following a records retention policy,
• No consensus at state or national level though as to methodology for
document destruction when a settlement agreement or court order
calls for it,
American Bar Association &
New Hampshire Bar Association
30

• How data destruction can best be accomplished turns on when a party
knows information will have to be destroyed:
1. The Need to Destroy Data is Identified When a Case First Begins
(Before Discovery is Underway);
2. The Need to Destroy Data is Not Identified Until the End of the
Case,
Best Practices
31

• It is far easier to destroy data at the close of a case if an agreement to
do so has been established at the outset;
• By agreement or protective order,
When The Need to Destroy Data is
Identified When a Case First Begins
( B e f o r e D i s c o v e r y i s U n d e r w a y )
32

• Sulloway’s IT Department can:
• Create an external drive outside of the back-up system, allowing all
case-related files to be saved only on that drive;
• Engage an E-Discovery vendor who can store the documents
securely (perhaps in the Cloud);
• and can provide a certification of destruction of documents at the
end of the case.
When The Need to Destroy Data is
Identified When a Case First Begins
33

• May be necessary to include language in the
settlement agreement stating that all reasonable
efforts will be used to delete all known copies of
relevant documents.
• Without such a provision, the firm/client could be
held to an impossible standard.
When The Need to Destroy Data is Not
Identified Until the End of the Case
34

What about back-up media?
When The Need to Destroy Data is Not
Identified Until the End of the Case
35

• An agreement could note, for example, that all back-up media are
cycled-out at some specific point in time;
• Even if the information is not destroyed initially, such a provision
illustrates that the files will be destroyed within a certain amount of
time,
Drafting Approach 1
36

• This type of provision provides protection on the off-chance that a
document is not deleted that should have been, so as not to be at odds
with the certificate of compliance,
• In the absence of such a provision in the settlement agreement, all
relevant files will have to be deleted, despite the fact that such an
endeavor may not be practical or even possible.
Drafting Approach 1
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• Or the provision could simply exclude back-ups from the certification
Drafting Approach 2
38

• Sample Language
• “In the case of electronic documents, destruction is sufficient if
documents have been deleted from all file systems in such a way
that no copies or fragments thereof can be retrieved by ordinary
means, and if any system backups containing copies of such
documents are encrypted and physically secure.”
Drafting Approach 2
39

Presented by:
Ethical Obligations Regarding
Confidential Client Information at
International Borders
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Materials Adapted from:
The Prudent Lawyer on the Borderline: Practical
Considerations and Ethical Obligations Regarding
Confidential Client Information at International
Borders
By Geoffrey M. Gallagher, Esquire
Sullivan County Attorney’s Office
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The purpose of this presentation is to:
1. Familiarize Sulloway attorneys with the Rules of Professional Conduct
that are implicated in a U.S. border search;
2. Provide you with a brief overview of U.S. border law;
3. Introduce you to a new CBP policy directive on border searches; and
4. Guide you on travelling with client materials.
Overview
42

• (c) A lawyer shall make reasonable efforts to prevent the inadvertent or
unauthorized disclosure of, or unauthorized access to, information
relating to the representation of a client.
New Hampshire Rule1.6 –
Confidentiality of Communications
43

• What is the US border search doctrine?
• Where does the US border search doctrine apply?
• What kind of searches occur at the US border?
• What kind of search of electronic devices can be expected?
Overview of U.S. Border Law
44

• “The Government’s interest in preventing the entry of unwanted
persons and effects is at its zenith at the international border.”
• United States v. Flores Montano, 541 U.S. 149, 152 (2004).
• The border search doctrine is an exception to the 4th Amendment's
general prohibition against warrantless searches without probable
cause.
• The border search doctrine permits customs officials to conduct
searches at international borders by detaining persons and property
both entering and leaving the United States.
US Border Search Doctrine:
45

• The US border search doctrine can be broken down into:
• The actual border;
• The “functional equivalent”; and
• The “extended border”
46

• In order to be a proper search under the border search doctrine, it must
be conducted for:
• The purposes of enforcing customs laws and not general law
enforcement purposes; and
• It must be conducted by a properly empowered official,
47

• The “functional equivalent” doctrine extends the border search doctrine
to all ports of entry, including airports, into the United States.
What is the US border search doctrine?
48

• Searches conducted under this exception are valid when:
• There is reasonable certainty that the person or thing cross the
border;
• There is reasonable certainty that there was no change in the
object of the search since it crossed the border; and
• The search is conducted as soon as practicable after the border
crossing.
49

• Reasonable certainty is a standard that is greater than probable cause,
but less than proof beyond a reasonable doubt.
50

• The “extended border” search doctrine further expands the doctrine to
apply beyond the actual border or its functional equivalent.
• The difference between the “functional equivalent” and “extended
border” is that the extended border search occurs after the first point
in time when the entity might be stopped within the country.
51

• A valid “extended border” search requires that:
1. There is reasonable certainty that the person or thing crossed the
border;
2. There is reasonable certainty that there was no change in the
object of the search since it crossed the border;
3. There is reasonable suspicion that criminal activity was occurring.
52

• Courts typically categorize border searches as either “routine” or “non-
routine.”
• Congress has granted properly empowered officials the authority to
conduct “routine” border searches.
Kinds of Searches at the U.S. Border:
53

• Typically, when determining if a search is routine, courts will examine
the degree of intrusiveness associated with the particular technique.
The First Circuit considers six factors:
1. Whether the search required the traveler to disrobe or expose intimate body parts;
2. Whether there was physical contact with the traveler;
3. Whether force was used;
4. Whether the type of search exposed the traveler to pain or danger;
5. The overall manner in which the search was conducted; and
6. Whether the traveler's reasonable expectation of privacy, if any, was invaded by the
search.
54

• At a minimum, courts require the reasonable suspicion of criminal
activity to justify a non-routine border search.
55

• At a minimum, courts require the reasonable suspicion of criminal
activity to justify a non-routine border search.
• The 9th Circuit has held that a forensic search of a laptop required
reasonable suspicion even though that search occurred at the border.
U.S. v. Cotterman, 709 F.3d 952 (9th Cir. 2013).
56

• The Fourth, Fifth, and Eleventh Circuit Courts of Appeals have
also examined border searches of electronic devices within the context
of the “routine” versus “nonroutine” framework. U.S. v. Kolsuz, 2018
U.S. App. LEXIS 12147 (4th Cir. 2018); U.S. v. Vergara, 884 F.3d 1309 (11th
Cir. 2018); U.S. v. Molina-Isidoro, 884 F.3rd 287 (5th Cir. 2018).
57

• Both Kolsuz and Vergara held that a “non-routine” border search of an
electronic devices did not require a warrant.
• Kolsuz, 2018 U.S. App. LEXIS 12147 at 30-31 (holding “it was reasonable for the CBP
officers who conducted the forensic analysis of Kolsuz's phone to rely on the
established and uniform body of precedent allowing warrantless border searches of
digital devices that are based on at least reasonable suspicion”);
• Vergara, 884 F.3d at 1312-13 (holding that border searches are excepted from
warrant and probable cause requirements);
• Molina-Isidoro held that a “routine” border search of an electronic device did not
require a warrant, but the Court did not reach the level of proof necessary because
the search was supported by probable cause. 884 F.3d at 292-93.
58

• In January of 2018, U.S. Customs and Border Protection (CBP) issued
CBP Directive No. 3340-049A, a policy directive that provides guidance
on CBP searches of electronic devices.
• The policy shines light on CBP’s position on what types of electronic
searches are “routine” and “non-routine”
• The policy also clarifies CBP procedure for reviewing electronic devices
when attorney-client privilege is being asserted.
New CBP Policy Directive
59

• Border searches are divided into two categories: “basic searches” and
“advanced searches.”
• Border searches should never include using a device to
access materials stored remotely.
• Officers may not intentionally use the device to access
information that is solely store remotely.” Para 5.1.2.
New CBP Policy Directive:
Border Searches
60

• The policy defines a basic search as any border search of an electronic device
that is not an advanced search.
• “In the course of a basic search, with or without suspicion, an Officer may
examine an electronic device and may review and analyze information
encountered at the border[.]” CBP Directive Non. 3340-049A, 5.1.3.
• Because there is no requirement of suspicion, this CBP language tells us
that CBP believes that these searches are routine.
Border Searches
61

• The policy defines an advanced search as “
• any search in which an Officer connects external equipment, through a wired or
wireless connection, to an electronic device not merely to gain access to the device,
• but to review, copy, and/or analyze its contents.
• In instances in which there is a reasonable suspicion of activity in violation of the
laws enforced or administered by CBP, or in which there is a national security
concern . . . An Officer may perform an an advanced search of an electronic device.”
Advanced Search
62

• When a lawyer objects to a search on the grounds that the material is
protected by attorney-client privilege, the CBP agent should seek:
• Written clarification of the materials for which the privilege or
doctrine is being asserted.
• Prior to conducting any search of those materials, the CBP will
contact CBP Associate/Assistant Chief Counsel’s Office.
Searching Materials When
Attorney-Client Privilege is Asserted:
63

• Those materials will be segregated from
other information examined during the
border search to ensure that any privileged
materials are handled appropriately.
64

• Unless there are any materials identified that indicate an
imminent threat to homeland security,
• copies of materials maintained by CBP and determined
to be privileged will be destroyed,
• excluding a copy to be maintained by CBP
Associate/Assistant Chief Counsel’s office,
• for the purposes of complying with a litigation hold or
other requirements of law.
65

• Materials physically stored on a
• laptop,
• cellphone, or
• iPad
• could potentially become subject to a border search.
• .
What Materials Can be Searched?
66

• Materials physically stored on a laptop, cellphone, or iPad could
potentially become subject to a border search.
• If you have materials subject to attorney-client privilege, you must
assert that privilege. CBP agents should then follow agency procedure
for reviewing materials when attorney-client privilege is asserted.
67

• If you are accessing materials by logging in through
Citrix, those materials are not accessible to CBP
agents because they are stored remotely.
68

• If you have stored work documents on your laptop
• and then deleted them,
• they are likely still accessible to CBP agents
• (unless your laptop has been through a “data scrub.”)
69

Sulloway’s IT Department can:
• Provide you with a “pool” laptop to use on an upcoming trip that is
scrubbed of data.
• Sulloway-provided laptops are password protected and encripted.
• This protects client’s data if the laptop is lost or stolen.
• However, you may still have to unlock the laptop for a CBP agent during a
border search.
What Materials Can be Searched
70

International Travel Tips:
• Whenever possible, plan to login to your desktop through Citrix rather
than keep materials stored on your devices.
• Sulloway’s IT Department recognizes that this isn’t always possible when
travelling to countries with unreliable internet connections.
• Separate files protected by attorney-client privilege from other files so
that you can easily identify them during a border search.
• Know beforehand whether your device has been “scrubbed” of data
that may have been previously stored on your device.
71

International Travel Tips:
• Whenever possible, plan to login to your desktop through Citrix rather
than keep materials stored on your devices.
• Sulloway’s IT Department recognizes that this isn’t always possible when
travelling to countries with unreliable internet connections.
• Separate files protected by attorney-client privilege from other files so
that you can easily identify them during a border search.
• Know beforehand whether your device has been “scrubbed” of data
that may have been previously stored on your device.
72

Presented by:
Margaret H. Nelson, Esquire
New Hampshire Ethics Decisions
A Y e a r i n R e v i e w
73

Procedural Posture:
• On ADO’s request, the Supreme Court granted interim suspension under Rule 37(9)(1);
37(16)( d)( f); Reiner’s Case, 152 N.H. 163, 168 (2005) (Reiner’s Case I) and Reiner’s Case
152 N.H. 594, 597 (2007) (Reiner’s Case II), based attorney’s indictment for felony witness
tampering.
Holding:
• Supreme Court affirms decision of Hearings Officer (Duggan, J. Ret.) to uphold the interim
suspension based on a preponderance of the evidence standard.
Don’t Lie: It Leads to Unfortunate
Consequences
S t a n d a r d s f o r I n t e r i m S u s p e n s i o n C l a r i fi e d
74

Burden of proof:
• The ADO’s burden is not to prove that the indictment allegations are true, but rather to
show that, considering the allegations and any additional evidence submitted, the
respondent’s suspension is necessary to protect the public and the integrity of the legal
profession.
Allegations that satisfied the burden of proof in this case:
• Allegations of indictment and additional evidence offered by the ADO, including
statements by the witness whose testimony the respondent allegedly sought to affect and
the judge presiding over the domestic violence case giving rise to the indictment met that
burden.
Consequences
S t a n d a r d s f o r I n t e r i m S u s p e n s i o n C l a r i fi e d :
75

Allegations that satisfied the burden of proof in this case:
• Allegations of indictment and additional evidence offered by the ADO, including statements by
the witness whose testimony the respondent allegedly sought to affect and the judge
presiding over the domestic violence case giving rise to the indictment met that burden.
• Supreme Court concluded that the respondent’s alleged comments to the witness were part of a
pattern of dishonesty and warranted interim suspension, noting:
• “The injury to the public and to the profession is substantial whenever an attorney is dishonest.
See Bosse’s Case, 155 N.H. 128, 132 (2007). ‘No single transgression reflects more negatively on
the legal profession’ and erodes public confidence in the bar more ‘completely than a lie.’ Id.
(quotations and brackets omitted).”
• Gallant's Case, 170 N.H. 528, 538 (2017).
Consequences
S t a n d a r d s f o r I n t e r i m S u s p e n s i o n C l a r i fi e d :
76

Facts:
• Two couples (1 and 2) engage in spouse swapping which leads to their respective divorces.
• Lawyer represents Wife 1 in her divorce and then takes on representation of Husband 2 in
his post-divorce proceedings. Wife 1 and Husband 2 are involved in a romantic relationship
and living together at the time.
• Lawyer obtains Husband 1’s financial affidavit while representing Wife 1 and then uses the
affidavit in the post-divorce action involving Husband 2. Before doing so, she did not file a
motion asking to do so or seek Husband 1’s permission.
Be Careful Out There: Conflicts
Can Arise In Unusual Ways
77

Holding:
• ADO upholds Hearing Panel’s finding that use of the affidavit violated Rule 1.7.
• ADO reversed Hearing Panel’s finding of a violation of Rule 1.1 (competence) and Rule
3.4(c) (lawyer shall not knowingly disobey an obligation under the rules of a tribunal),
finding no basis to conclude that Lawyer’s use of the affidavit violated Circuit Court –
Family Division Rule 1.30 or RSA 458:15-b.
Can Arise In Unusual Ways”
78

Analysis:
• Concurrent representation of Wife 1 and Husband 2 raised a potential conflict of interest
because there were overlapping issues involving child support, alimony and child visitation
which posed a significant risk that Lawyer’s representation of each client would be
materially limited by her representation of the other.
• No effort to get informed consent and none of the circumstances permitting concurrent
representation enumerated in Rule 1.7(b) applied.
Citation:
• Pearson, Tracy A. (f/k/a Bernson, Tracy A.) advs. Attorney Discipline Office - # 14-017
Can Arise In Unusual Ways
79

Facts:
• Lawyer represents grandparents in hotly contested effort to get visitation rights with
grandchildren following acrimonious divorce.
Attorney’s emails to opposing counsel included the following language:
• “I look forward to protracted warfare with you and your entitled client.”
• “Your client is deceitful and controlling … See you in court.”
• “Are you serious? You are despicable, disgraceful and disingenuous for these comments…”
• “When she [opposing counsel’s client] stops pretending to be the victim and decides to do
something to help solve this mess, maybe we can talk…. She and you are indeed
disgraceful…”
• “I do recall from history that the NAZI’s punished relatives for the crimes of family
members…”
Don’t Let Your Emotions Affect
Your Advocacy
80

Result:
• Complaint to ADO resolved by Stipulation.
• ADO and lawyer agreed his conduct violated Rule 4.4 (conduct whose primary
purpose is to embarrass, delay or burden a third party)
• Conduct caused injury because it increased the friction between the parties and
potentially damaged Lawyer’s clients’ interests and harmed the integrity of the
profession.
Your Advocacy
81

Result:
• Lawyer’s substantial, 30 year experience constituted an aggravating factor while his
absence of a dishonest or selfish motive, lack of prior discipline and cooperation with
the ADO were mitigating factors.
• Reprimand was determined to be the appropriate sanction.
Citation:
• Hoppock, Joseph S. advs. Attorney Discipline Office - # 16-027
Your Advocacy
82

Facts:
• Lawyer with substantial experience is struggling with a variety of personal problems
including anxiety and depression.
• Lawyer represents client who wants him to file the will of her former husband which
left her his real estate, plus the remainder of his estate, after a gift to his brother.
• Lawyer never takes steps to inventory the estate, pay for funeral expenses and
resolve other claims or file the will for probate. Despite this lack of action, Lawyer
repeatedly told client the probate was proceeding.
Don’t Let Your Personal Problems
Harm Your Client’s Interests
83

Procedural posture:
• Owner of funeral home brought a petition to open an estate which is granted but
Administrator does not know of all assets or existence of the Will.
• Estate distributed under the intestacy statute to his three estranged siblings.
• Client ultimately hires a new lawyer who quickly becomes aware of lack of filing of
will and distribution of estate and files a grievance with ADO.
84

Result:
• Lawyer and ADO enter into Stipulation, agreeing that his conduct violates Rule 1.1
(competence), Rule 1.3 (diligence), Rule 1.4 (communication), Rule 8.4(c) (deceit)
and Rule 8.4(a) (general rule).
• Base line sanction of suspension considered in light of aggravating and mitigating
factors, including Lawyer’s personal and emotional problems, cooperation with ADO
and remorse balanced against his substantial experience as a Lawyer.
• Three year suspension with payment of costs imposed.
Citation:
• Glennon, Martin K. advs. Attorney Discipline Office - # 17-006
85

Facts – the long and winding road:
• Case arises out of a hospital’s decision to not renew its contract with a business
entity (“the Group”) providing pathology services to the hospital. Pathology group’s
principals were Dr. A and Dr. B.
• Lawyer agrees to represent the Group and Drs. A and B regarding the hospital and its
President. Lawyer discusses the possibility of future conflicts generally with clients
but does not identify them or seek informed consent in writing.
Representing Multiple Parties Can
Be Tricky Especially if the Facts or
Attitudes Change
86

• Clients, contrary to lawyer’s advice, go public with their concerns that non-renewal
of the contract was in retaliation for the Group having reported HIPAA violations
relating to a 2007 security breach, including making a claim to the College of
American Pathologists, which then placed the pathology lab on probation. Hospital
publicly blames the group and its principals for the probation.
• Dr. A, her husband (also a doctor but not a member of the Group) and Dr. B go to
hospital to retrieve personal and business items. Husband and Dr. B use
“DriveScrubber” software to copy and delete certain documents. Dr. A was aware of
the plan and gave husband her password to access accounts but did not personally
use “DriveSrubber”
Attitudes Change
87

• Hospital brings federal litigation against the Group and Drs. A and B, later amended
to include Dr. A’s Husband as a defendant. Lawyer represents all 4 defendants.
• Lawyer confirms the downloading of documents was done with Dr. A’s authority but
did not confirm in writing the joint representation or any issues that could possibly
arise from that representation, including the fact that Dr. A may have less potential
liability for the downloading of the documents than her husband and Dr. B.
• As litigation progressed, clients’ interests began to diverge for various reasons. Dr. A
and her husband want to stay in NH and maintain their practice. Dr. B moves out of
state for other employment. Dr. B’s defamation and false light claims affected by
discovery of embarrassing personal information on his computer.
Attitudes Change
88

• Court proposes a “walk away” settlement in light of the fact that any recovery for the
plaintiff might be balanced out by damages awarded to defendants on some of their
counterclaims. Dr. B initially willing to consider this kind of settlement; Drs. A and B
opposed.
• Lawyer for the first time reaches out to his firm’s internal legal ethics officer for
guidance as to whether there should be separate counsel for Dr. B. A motion for
mandatory withdrawal is prepared but not filed.
Attitudes Change
89

• While those discussions going on, Dr. A, her husband and Dr. B agreed to begin
discussions on settlement.
• Dr. A continues to press for settlement with “substance.” Settlement negotiations
broke down and trial began. However, a settlement in principle was reached during
trial.
• Dr. A later expressed concerns about settlement agreement she was asked to sign.
Ultimately, Dr. A and her husband sought legal advice from other counsel about the
settlement agreement which was ultimately concluded.
Attitudes Change
90

Procedural posture:
• Dr. A and her husband brought a legal malpractice action against Lawyer and his firm
which was resolved by summary judgment in favor of the defendants. An appeal was
pending at the time of the ADO order.
Resolution:
• The parties stipulated that Lawyer violated Rule 1.7 in undertaking the joint
representation without confirming his clients’ informed consent in writing.
• Multiple significant risks that materially limited the joint representation, some of which
existed at the beginning of the representation and some which developed later, should
have been addressed and the clients’ informed written consent obtained.
Attitudes Change
91

Resolution:
• Reprimand is the appropriate sanction given Lawyer’s absence of a prior disciplinary
record, his lack of a personal or selfish motive, cooperation with the ADO, balanced
against his substantial experience in practice.
• This Stipulation is not an admission of liability for civil purposes but was solely for
resolving litigation with the ADO.
Citation:
• Grau, Charles W. advs. Attorney Discipline Office - # 13-033
Attitudes Change
92

New Hampshire Rule of Professional Conduct 1.7
“(a) Except as provided in paragraphs (b) and (c), a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. A concurrent conflict of interest
exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer's responsibilities to another client , a former client or a third
person or by a personal interest of the lawyer.”
Waiver Letters: Relevant Rule
93

New Hampshire Rule of Professional Conduct 1.7
“(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a
lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and
diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against
another client represented by the lawyer in the same litigation or other proceeding before a
tribunal; and
(4) each affected client gives informed consent, confirmed in writing.”
94

New Hampshire Rule of Professional Conduct 1.7, Ethics Committee Comment
(emphasis added):
• “The requirements that a lawyer maintain loyalty to a client and protect the client's
confidences are fundamental. Although both the former rule 1.7 and the current rule
1.7(b) allow a lawyer to undertake representation in circumstances when there is exists a
concurrent conflict of interest, the lawyer should use extreme caution in deciding to
undertake such representation. The lawyer must make an independent judgment that he
or she can provide "competent and diligent representation" before the lawyer can even
ask for consent to proceed. The court in subsequent proceedings can review such a
judgment.
• See Fiandaca v. Cunningham, 827 F.2d. 825 (1st Cir. 1987).”
95

New Hampshire Rule of Professional Conduct 1.7, Ethics Committee Comment
(emphasis added):
• “In evaluating the appropriateness of representation in a conflict situation under
1.7(b), the New Hampshire Bar Association Ethics Committee has used under the old
rules the "harsh reality test" which states:
• ‘(i)f a disinterested lawyer were to look back at the inception of this
representation once something goes wrong, would that lawyer seriously
question the wisdom of the first attorney's requesting the client's consent to
this representation or question whether there had been full disclosure to the
client prior to obtaining the consent. If this "harsh reality test" may not be
readily satisfied by the inquiring attorney, the inquiring attorney and other
members of the inquiring attorney's firm should decline representation . . . ."
New Hampshire Bar Association Ethics Committee Opinion 1988-89/24
(http://nhbar.org/pdfs/f088-89-24.pdf).’
• This test has proven useful to practicing attorneys and retains its validity under the
amended rules.”
96

Presented by:
Peter F. Imse, Esquire
Model Rule 8.4(g)
The Proposed Rule’s Development in New Hampshire
97

ABA Model Rule 8.4(g)
ABA’s Model Rule of Professional Conduct (“Model Rule”) 8.4(g) states:
“It is professional misconduct for a lawyer to:
• (g) engage in conduct that the lawyer knows or reasonably should know
is harassment or discrimination on the basis of race, sex, religion,
national origin, ethnicity, disability, age, sexual orientation, gender
identity, marital status or socioeconomic status in conduct related to the
practice of law. This paragraph does not limit the ability of a lawyer to
accept, decline or withdraw from a representation in accordance with
Rule 1.16. This paragraph does not preclude legitimate advice or
advocacy consistent with these Rules.”
98

ABA Model Rule 8.4(g), ABA Comment [3]
[3] Discrimination and harassment by lawyers in violation of paragraph (g)
undermine confidence in the legal profession and the legal system. Such
discrimination includes harmful verbal or physical conduct that manifests
bias or prejudice towards others. Harassment includes sexual harassment
and derogatory or demeaning verbal or physical conduct. Sexual
harassment includes unwelcome sexual advances, requests for sexual
favors, and other unwelcome verbal or physical conduct of a sexual
nature. The substantive law of antidiscrimination and anti-harassment
statutes and case law may guide application of paragraph (g).
99

ABA Model Rule 8.4(g), ABA Comment [4]
[4] Conduct related to the practice of law includes representing clients;
interacting with witnesses, coworkers, court personnel, lawyers and
others while engaged in the practice of law; operating or managing a law
firm or law practice; and participating in bar association, business or social
activities in connection with the practice of law. Lawyers may engage in
conduct undertaken to promote diversity and inclusion without violating
this Rule by, for example, implementing initiatives aimed at recruiting,
hiring, retaining and advancing diverse employees or sponsoring diverse
law student organizations.
100

Purpose of the Rules of Professional
Conduct
• As a profession, we hold ourselves to a higher standards of behavior.
• New Hampshire Rules of Professional Conduct (“Rules”) are minimum standards, not limits
on our behavior.
• Rules are client and third-party focused – not lawyer focused. They are designed to protect
others, not lawyers.
• Rules regulate everything from how we deal with clients, to how we act in the court
system, how we treat third parties, and, in some cases, how we behave when we are not
practicing law.
101

Purpose of the Rules of Professional Conduct
• The Rules already provide that:
• “Dishonesty, fraud, deceit and misrepresentation” are grounds for
disciplinary sanctions (8.4(c)), and that,
• We have a duty to report substantial questions as to the “honesty,
trustworthiness and fitness as a lawyer” of other lawyers with whom we
interact.
• The Rules also prohibit lawyers from taking any “action” while
“representing a client” “if the lawyer knows or it is obvious that the
action has the primary purpose to embarrass, delay or burden a third
person.” Rule 4.4(a).
• Those in favor in adopting Model Rule 8.4(g) in New Hampshire believe
that harassment and discrimination are evidence of a lack of respect
and an abusive attitude toward the victim that are incompatible with
holding a license to practice law. 102

Context for Rule 8.4(g) in New
Hampshire
• Unlike over 30 other states, New Hampshire has not adopted any version of Model Rule
8.4(d) or associated Comment [3].
• Model Rule 8.4(d) states that ‘[I]t is professional misconduct for a lawyer to . . . (d) engage
in conduct that is prejudicial to the administration of justice.” ABA Comment [3] provides
that “[a] lawyer who, in the course of representing a client, knowingly manifests by words
of conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age,
sexual orientation or socioeconomic status, violates paragraph (d) when such actions are
prejudicial to the administration of justice.”
• Over thirty states adopted Model Rule 8.4(d) and ABA Comment [3], fourteen of which
expanded the context in which it applies beyond attorney-client interactions.
• Nearly every major profession, including doctors, nurses, dentists, hospitals, counselors,
architects, engineers, realtors, and educators, to name a few, has professional conduct
rules against discrimination and harassment.
103

History of Model Rule 8.4(g) in New
Hampshire
• ABA adopted Model Rule 8.4(g) in 2016.
• Nationwide, twenty-four states have either adopted a form of Model Rule
8.4(g), or already had an analogous rule.
• Proposed New Hampshire Rule was reviewed by the Ethics Committee and
Board of Governors, both of whom approved the proposal.
• Proposed Rule was submitted to the New Hampshire Supreme Court’s Advisory
Committee on Rules in March 2017.
• Current status: ACR is negotiating revisions to the language of the proposed
Rule among ACR Members, Ethics Committee members, and “opponents”.
104

Current Iteration of New Hampshire’s
Proposed Rule 8.4(g) Compared to ABA
Model Rule
It is professional misconduct for a lawyer to:
• “(g) engage in conduct related to the practice of law that the lawyer knows or
reasonably should know is harassment or discrimination, as defined by
substantive state or federal law, on the basis of race, sex, religion, national
origin, ethnicity, physical or mental disability, age, sexual orientation, gender
identity, or marital status; however, statutory or regulatory exemptions, based
upon the number of personnel in a law firm, shall not relieve a lawyer of the
requirement to comply with this Rule or socioeconomic status in conduct
related to the practice of law. This paragraph does not limit the ability of a
lawyer to accept, decline or withdraw from a representation in accordance
with Rule 1.16 nor does it infringe on a lawyer's First Amendment rights or a
lawyer's right to advocate for a client in a manner that is consistent with
these Rules. This paragraph does not preclude legitimate advice or advocacy
consistent with these Rules." 105

Criticisms and Responses
Argument:
• The proposed Rule violates the First Amendment due to vagueness.
Reply:
• Ethics rules cannot abrogate or limit constitutional rights.
• The Rule expressly states that the proposal is not intended to limit a
lawyer’s First Amendment Right.
• The substantive law of discrimination and harassment will govern the
interpretation of the Rule. That body of law regulates behavior in a
manner that is constitutionally permissible.
106

Response to First Amendment Claims
Best evidence that the proposed rule does not raise Constitutional
vagueness issues:
• New Hampshire’s Rules already prohibit lawyers from taking any “action” while
“representing a client” “if the lawyer knows or it is obvious that the action has the primary
purpose to embarrass, delay or burden a third person.” Rule 4.4(a) without challenge.
• Existing federal and state laws against discrimination and harassment have not been held
to be unconstitutional.
• Over 30 states have regulated discrimination and harassment within the context of the
“administration of justice” for up to 30 years under Model Rule 8.4(d); that Rule has not
been held unconstitutional.
• Many other professions have existing regulations regarding harassment and discrimination
– none of those rules have been held to be unconstitutional.
107

Argument:
• The rule will subject attorneys in faith-based organizations to sanctions
for advocating for or enforcing exclusionary policies that are based upon
matters of faith.
Reply:
• Participants in faith-based organizations already enjoy broad First
Amendment protections.
• Representing faith-based organizations in a legal matter, or participating
in faith-based organizations in one’s personal life, are examples of
constitutionally-protected behaviors, and they also fall outside of the
substantive legal definitions of harassment and discrimination that are
incorporated into the proposal.
108

Argument:
• The Rule will prevent attorneys from representing clients accused of
discrimination of harassment.
Reply:
• Rule 1.2(b) makes clear that a lawyer’s representation of a client does
not constitute an endorsement of the client’s views or behaviors.
• The current proposal expressly states that the Rule does not limit
attorney behavior that is otherwise consistent with the Rules.
109

Argument:
• The Rule will force lawyers to represent clients who they do not want to represent.
Reply:
• The proposal specifically incorporates the provisions of Rule 1.16 (a)(i) permits a lawyer to
decline or withdraw from a representation that would result in violation of the rules.
• Rule 1.7(a)(2) prohibits lawyers from undertaking a representation if it would be
“materially limited” by a “personal interest of the lawyer”.
• However, case law is still developing on the question of whether or not it is a violation of
federal law to decline to do business with someone solely because they are a member of a
protected class.
• See Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 201 L.Ed.2d 35 44 (U.S. 2018)
(“[I]t is a general rule that [religious and philosophical] objections do not allow business
owners and other actors in the economy and in society to deny protected persons equal
access to goods and services under a neutral and generally applicable public
accommodations law..”) 110

Argument:
• Existing laws are sufficient, and the conduct addressed by the proposed Rule is better
handled by employers.
Reply:
• Existing laws do not apply to small firms, nor do they address behavior among firm
owners, or by lawyers against court staff or third parties, such as stenographers, free-lance
paralegals, etc.
• Even if an attorney is found to have violated existing State or Federal law, there is no basis
under our New Hampshire Rules to sanction such behavior, unless it falls under Rule
4.4(a).
111

Opposition to Rule 8.4(g) in New
Hampshire
Argument:
• The Rule leaves lawyers vulnerable to unjustified disciplinary action.
Reply:
• This argument would support the repeal of every Rule.
• The purpose of the proposed Rule is to encourage lawyers to be conscious of their
conduct, and to protect those who are subject to discrimination and harassment by
attorneys.
• The Rule would set a manageable minimum standard for appropriate and ethical behavior.
112

What Next?
• Negotiations will continue over the Summer.
• Primary open issue – how to incorporate substantive law
into the Rule.
• Proposal and any compromise will be considered by the ACR
in September.
113

Presented by:
Margaret H. Nelson, Esq.
A Lawyer’s Duty to Inform a Current or
Former Client of the Lawyer’s Material
Error
A B A F o r m a l O p i n i o n 4 8 1
114

ABA Opinion 481 helps clarify:
• When a lawyer must inform a client of an error.
Presentation topics:
• Relevant Rules
• Holding
• Applicability
Topic Overview
115

Model Rule 1.4
(a) A lawyer shall:
(1) promptly inform the client of any decision of circumstance
with respect to which the client’s informed consent, as defined in
Rule 1.0(e), is required by these Rules;
NH Rule 1.4
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance
with respect to which the client's informed consent is required by
these Rules;
The Rules: Client-Lawyer Relationship
116

Model Rule 1.4 / NH Rule 1.4
(a) A lawyer shall:
(2) reasonably consult with the client about the means by
which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of
the matter;
(4) promptly comply with reasonable requests for information;
117

Model Rule 1.4
(b) A lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decisions
regarding the representation.
NH Rule 1.4
(b) A lawyer shall explain the legal and practical aspects of a
matter and alternative courses of action to the extent that such
explanation is reasonably necessary to permit the client to make
informed decisions regarding the representation.
118

Model Rule 1.4 & Duty to Disclose Material Errors to Current
Clients
• “More broadly, the ‘guiding principle’ undergirding Model Rule
1.4 is that ‘the lawyer should fulfill reasonable client
expectations for information consistent with the duty to act in
the client’s best interests, and the client’s overall requirements
as to the character of representation.’ A lawyer may not
withhold information from a client to serve the lawyer’s own
interests or convenience.”
• ABA Comm. On Prof’l Ethics and Grievances, Formal Op. 481 (2018)
(citing Model Rules of Prof’l Conduct R. 1.4 cmt. 5, 7.
The Rules: Client-Lawyer
Relationship
119

Genesis of the Opinion:
• “[L]awyers deserve more specific guidance in evaluating their
duty to disclose errors to current clients than has previously
been available.”
• ABA Comm. On Prof’l Ethics and Grievances, Formal Op. 481
(2018).
The Opinion
120

Holding:
• “[T]he Committee concludes that a lawyer must inform a
current client of a material error committed by the lawyer in
the representation.”
• This obligation turns on the definitions for “current client”
and “material error.”
The Opinion
121

Obligations to Former Clients
• “If a material error relates to a former client’s representation
and the lawyer does not discover the error until after the
representation has been terminated, the lawyer has no
obligation under the Model Rules to inform the former client
of the error.”
• The opinion acknowledges that lawyers may choose to
disclose a material error to a former client for individual
reasons, but notes that “[t]hose are, however, personal
decisions for lawyers rather than obligations imposed under
the Model Rules.”
• ABA Comm. On Prof’l Ethics and Grievances, Formal Op. 481 (2018).
Who is a Current Client?
122

“Generally speaking, a current client becomes a former
client”
a) “[A]t the time specified by the lawyer for the conclusion of the
representation, and acknowledged by the client[.]”
b) “[W]hen the lawyer withdraws from the representation
pursuant to Model Rules of Professional Conduct 1.16[.]”
c) “[W]hen the client terminates the representation[.]” or
d) “[W]hen overt acts inconsistent with the continuation of the
attorney-client relationship indicate that the relationship has
ended.”
123

“Absent express statements of overt acts by either party, an
attorney-client relationship also may be terminated when it
would be objectively unreasonable to continue to bind the
parties to each other.”
124

“Absent express statements of overt acts by either party . . . the scope
of a lawyer’s representation loosely falls into one of three categories:
1. The lawyer is retained as general counsel to handle all of the
client’s legal matters;
2. The lawyer is retained for all matters in a specific practice areas; or
3. The lawyer is retained to represent the client in a discrete matter.
With respect to categories one and two above, an attorney-client
relationship continues even when the lawyer has no pending matter for
the client . . . . In the third category, where a lawyer agrees to
undertake a specific matter, the attorney-client relationship ends once
the matter is concluded.”
125

Episodic Clients
• Finally, whether an “episodic client, meaning a client who engages
the lawyer whenever the client requires legal representation, but
whose legal needs are not constant or continuous” is a “current
client” is a fact specific inquiry.
126

Material Error
• “An error is material if a disinterested lawyer would conclude
that it is
a) reasonably likely to harm or prejudice a client; or
b) of such a nature that it would reasonably cause a client
to consider terminating the representation even in the
absence of harm or prejudice.”
(2018).
What is a Material Error?
127

Defining the Parameters of Material Error
• “[I]t is unreasonable to conclude that a lawyer must inform a current
client of an error only if that error may support a colorable legal
malpractice claim, because a lawyer's error may impair a client’s
representation even if the client will never be able to prove all of the
elements of malpractice.”
• “At the same time, a lawyer should not necessarily be able to avoid
disclosure of an error absent apparent harm to the client because the
lawyer’s error may be of such a nature that it would cause a
reasonable client to lose confidence in the lawyer’s ability to perform
the representation competently, diligently, or loyalty despite the
absence of clear harm.”
(2018).
What is a Material Error?
128

Questions?
Comments?
Concerns?
Conclusion
129

Annual Ethics Update 2018

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